Beware, The Stealthy Duhig Rule

by Gray Reed & McGraw

Johnson v. Finkle, from North Dakota, centers around the long-standing but oft-forgotten headache that is the Duhig doctrine. If you aren’t familiar, you should be. Here it is:

The Rule

“Where a grantor conveys land in such a manner as to include 100% of the minerals, and then reserves to himself 50% of the minerals, the reservation is not operative where the grantor owns only 50% of the minerals. The deed is construed as undertaking the transfer of 50% of the minerals to the grantee. Both this grant and the reservation cannot be given effect.  The grantor loses because the risk of title loss is on him.”

The facts in this case aren’t novel. So, first we have …

A Practice Tip

Duhig is important in at least two situations: The first, it seems, is when the grantor doesn’t know or doesn’t care how much of the minerals he owns and doesn’t realize that reserving half, let’s say, will leave him with none if all he owns is half.

The second is where the scrivener hasn’t considered the rule and hence doesn’t comprehend the effect of prior reservations. This can be addressed is by making the reservation and conveyance subject to prior reservations and restrictions.  Non-lawyers:  Please don’t try this at home.  Get good legal advice.

The Facts Of Finkle

The Andersons owned 100% of the minerals.  In 1949 they sold a 1/2 mineral interest to the Youngbloods. In 1957, the Andersons entered into a Contract for Deed with the Johnsons that included a 1/4 mineral reservation. (In a contract for deed the seller retains title and finances the sale until the buyer pays in full, at which point title is transferred to the buyer.) In 1962 the Andersons gave a Warranty Deed to the Johnsons with this provision: “The grantor reserves a 1/4 mineral interest, including gas and oil, in the … premises, as of the date of this contract.”

Based on the language of the reservations alone, it appears that the parties intended the mineral ownership to be 1/2 to Youngbloods, 1/4 reserved by Andersons, and the remaining 1/4 conveyed to Johnsons.  (Finkle is the heir of the Andersons.)

Finkle argued that because the Johnsons owned the property under the 1957 Contract for Deed, they owned an outstanding mineral interest and Duhig shouldn’t govern. Not so fast, Mr. Finkle!  Nothing in the 1962 Warranty Deed indicated that the Andersons didn’t own all of the minerals at the time of the conveyance. And therein is the problem – the Johnsons had no notice that the Andersons didn’t own 100% of the minerals.  Based on the Warranty Deed, they intended to take 3/4 of the minerals.

The Ruling

Johnson didn’t have legal title to the property until the 1962 Warranty Deed. Recall that the grantor keeps legal title to the property until the grantor complies with the conditions of the contract. Thus, the Duhig rule applied, and the Andersons didn’t have a “large enough interest to satisfy both their grant to [the Johnsons] and reserve a 1/4 interest.” Thus, the Andersons weren’t able to reserve any of the minerals. This ultimately gave the Johnsons a 1/2 mineral interest in the property.

Next post: Which states apply Duhig?

This musical interlude portrays the heartache of those, like Mr. Finkle’s predecessors, who ignore the doctrine.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Gray Reed & McGraw | Attorney Advertising

Written by:

Gray Reed & McGraw

Gray Reed & McGraw on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at:

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.